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Articles 181 - 206 of 206
Full-Text Articles in Energy and Utilities Law
Public-Private Conservation Agreements And The Greater Sage-Grouse, Justin R. Pidot
Public-Private Conservation Agreements And The Greater Sage-Grouse, Justin R. Pidot
Public Land & Resources Law Review
In 2015, the Obama Administration announced its conservation plans for the greater sage-grouse, an iconic bird of the intermountain west.Political leadership at the time described those plans as the “largest landscape-level conservation effort in U.S. history,”and they served as the foundation for a decision by the U.S. Fish and Wildlife Service (“FWS”) that a listing of the bird was not warranted under the Endangered Species Act (“ESA”). The Trump Administration appears poised to substantially amend the plans, although an array of interested parties have urged that the plans be left intact. Regardless of the outcome of this debate, conservation of …
Streamlining The Production Of Clean Energy: Proposals To Reform The Hydroelectricity Licensing Process, Travis Kavulla, Laura Farkas
Streamlining The Production Of Clean Energy: Proposals To Reform The Hydroelectricity Licensing Process, Travis Kavulla, Laura Farkas
Public Land & Resources Law Review
Hydroelectric power is an efficient and clean source of power. In an era when air emissions dominate public concern about the environmental effects of the energy sector, it is a paradox that among the most highly regulated energy projects are hydroelectric dams, which do not combust fuel. This is partly due to a failure of successive statutory enactments,which have transformed hydroelectric licensing from a regulatory “one-stop shop” with a single regulator, to a process chained to a bewilderingnumber of often conflicting regulatory agencies, often riven with delay. Hydroelectric licensing has also failed because its capacious standard of review encourages special-interest …
Keeping Power In Charge: Federal Hydropower And The Downstream Environment, Reed D. Benson
Keeping Power In Charge: Federal Hydropower And The Downstream Environment, Reed D. Benson
Public Land & Resources Law Review
No abstract provided.
Language Matters: Environmental Controversy And The Quest For Common Ground, Scott Slovic
Language Matters: Environmental Controversy And The Quest For Common Ground, Scott Slovic
Public Land & Resources Law Review
No abstract provided.
Center For Biological Diversity V. Zinke, Ryan Hickey
Center For Biological Diversity V. Zinke, Ryan Hickey
Public Land & Resources Law Review
The oft-cited “arbitrary and capricious” standard revived the Center for Biological Diversity’s most recent legal challenge in its decades-long quest to see arctic grayling listed under the Endangered Species Act. While this Ninth Circuit decision did not grant grayling ESA protections, it did require the United States Fish and Wildlife Service to reconsider its 2014 finding that listing grayling as threatened or endangered was unwarranted. In doing so, the court found “range,” as used in the ESA, vague while endorsing the FWS’s 2014 clarification of that term. Finally, this holding identified specific shortcomings of the challenged FWS finding, highlighting how …
Friends Of Animals V. United States Fish & Wildlife Service, Bradley E. Tinker
Friends Of Animals V. United States Fish & Wildlife Service, Bradley E. Tinker
Public Land & Resources Law Review
In Friends of Animals v. United States Fish & Wildlife Service, the Ninth Circuit held that the plain language of the Migratory Bird Treaty Act allows for the removal of one species of bird to benefit another species. Friends of Animals argued that the Service’s experiment permitting the taking of one species––the barred owl––to advance the conservation of a different species––the northern spotted owl––violated the Migratory Bird Treaty Act. The court, however, found that the Act delegates broad implementing discretion to the Secretary of the Interior, and neither the Act nor the underlying international conventions limit the taking of …
Public Employees For Environmental Responsibility V. United States Epa, F. Aaron Rains
Public Employees For Environmental Responsibility V. United States Epa, F. Aaron Rains
Public Land & Resources Law Review
Prior to 2016, the EPA acknowledged that human activities significantly contribute to climate change. However, on March 9, 2017, EPA Administrator Scott Pruitt announced that significant debate regarding the issue remained in the scientific community. In response to these statements, a nonprofit organization filed a FOIA request with the EPA seeking any documents or records Pruitt may have used when formulating his statements or substantiating his position. The EPA refused to comply with the request, citing undue burden and improper interrogation and this action followed. Upon review, the District Court for the District of Columbia found the plaintiff’s FOIA request …
Western Organization Of Resource Councils V. Zinke, Daniel Brister
Western Organization Of Resource Councils V. Zinke, Daniel Brister
Public Land & Resources Law Review
Due to advances in climate science and an increased understanding of coal’s role as a greenhouse gas, Appellant conservation organizations sued the Secretary of Interior for failing to supplement the 1979 Programmatic EIS for the Federal Coal Management Program. The D.C. Circuit Court held neither NEPA nor the APA required a supplemental EIS and that the court lacked jurisdiction to compel the Secretary to prepare one. Expressing sympathy for the Appellants’ position, the D.C. Circuit took the unusual step of offering advice to future plaintiffs on how they might succeed on similar claims.
California V. U.S. Bureau Of Land Management, Oliver F. Wood
California V. U.S. Bureau Of Land Management, Oliver F. Wood
Public Land & Resources Law Review
The United States District Court for the Northern District of California granted a preliminary injunction against the Bureau of Land Management from implementing the Suspension Rule, which would delay the requirements of the Waste Prevention, Production Subject to Royalties, and Resource Conservation Rule. Additionally, the court denied the BLM and intervening third parties’ motion to transfer venue to the District of Wyoming. The court held the plaintiffs were entitled to a preliminary injunction because the BLM did not provide a reasoned analysis for the Suspension Rule. This failure to provide meaningful notice and comment was an arbitrary and capricious abuse …
National Association Of Manufacturers V. Department Of Defense, Summer L. Carmack
National Association Of Manufacturers V. Department Of Defense, Summer L. Carmack
Public Land & Resources Law Review
In an attempt to provide consistency to the interpretation and application of the statutory phrase “waters of the United States,” as used in the Clean Water Act, the EPA and Army Corps of Engineers together passed the WOTUS Rule. Unfortunately, the Rule has created more confusion than clarity, resulting in a number of lawsuits challenging substantive portions of the Rule’s language. National Association of Manufacturers v. Department of Defense did not address those substantive challenges, but instead determined whether those claims challenging the Rule must be filed in federal district courts or federal courts of appeals. In its decision, the …
Montana Environmental Information Center V. U.S. Office Of Surface Mining, Lowell J. Chandler
Montana Environmental Information Center V. U.S. Office Of Surface Mining, Lowell J. Chandler
Public Land & Resources Law Review
In MEIC v. U.S. Office of Surface Mining, the cost of coal mining’s climate impacts and the agency’s NEPA review obligations are at issue. The United States District Court for the District of Montana found that the Office of Surface Mining and Enforcement failed to adequately consider the need for an EIS and to take a hard look at the indirect, cumulative, and foreseeable impacts of a proposed coal mine expansion in central Montana. In its NEPA analysis, the court concluded that if the benefits of a carbon-intensive project are quantified, then the costs to the climate should be …
Wyoming V. Zinke, Jaclyn Van Natta
Wyoming V. Zinke, Jaclyn Van Natta
Public Land & Resources Law Review
In Wyoming v. Zinke, the Bureau of Land Management attempted to update a regulation governing hydraulic fracturing from the 1980s, but oil and gas industry companies opposed, and brought suit. The district court held in favor of the industry petitioners, and the Bureau of Land Management and citizen group intervenors appealed. In the wake of appeal, Donald J. Trump became President of the United States. The administration change caused the Bureau of Land Management to alter its position and align with the new administration. Secretary of the Interior, Ryan Zinke, via executive order, began rescinding the new fracking regulation, …
California V. United States Bureau Of Land Management, Molly M. Kelly
California V. United States Bureau Of Land Management, Molly M. Kelly
Public Land & Resources Law Review
After President Trump’s Executive Order No. 13783 encouraging relaxing regulatory burdens on energy production, the Bureau of Land Management reevaluated its 2016 “Waste Prevention Rule” which addressed waste of natural gas from venting, flaring, or other leaks resulting from oil and natural gas production activities. The BLM sought to postpone the Rule’s compliance date to give the agency time to promulgate a new rule—effectively overruling the 2016 Rule. Plaintiffs challenged the agency’s compliance under the Administrative Procedures Act, and the court found the BLM did not properly follow APA requirements.
United States V. Osage Wind, Llc, Summer Carmack
United States V. Osage Wind, Llc, Summer Carmack
Public Land & Resources Law Review
The Osage Nation, as owner of the beneficial interest in its mineral estate, issues federally-approved leases to persons and entities who wish to conduct mineral development on its lands. After an energy-development company, Osage Wind, leased privately-owned surface lands within Tribal reservation boundaries and began to excavate minerals for purposes of constructing a wind farm, the United States brought suit on the Tribe’s behalf. In the ensuing litigation, the Osage Nation insisted that Osage Wind should have obtained a mineral lease from the Tribe before beginning its work. In its decision, the Tenth Circuit applied one of the Indian law …
Murray Energy Corporation V. Administrator Of Environmental Protection Agency, Peter B. Taylor
Murray Energy Corporation V. Administrator Of Environmental Protection Agency, Peter B. Taylor
Public Land & Resources Law Review
Congress amended the Clean Air Act in 1977 because of public concern that enforcement of the Clean Air Act would have adverse effects on employment. Section 321(a) tasks the Administrator of the Environmental Protection Agency with a continuous duty to evaluate the potential employment impact of the administration and enforcement of the Clean Air Act. In Murray Energy Corporation v. Administrator of Environmental Protection Agency, the United States Court of Appeals for the Fourth Circuit ruled on whether the federal court’s authority to review and enforce non-discretionary Clean Air Act duties extended to the EPA’s Section 321(a) duty to continuously …
Earthreports, Inc. V. Ferc, Caitlin Buzzas
Earthreports, Inc. V. Ferc, Caitlin Buzzas
Public Land & Resources Law Review
In EarthReports, Inc. v. FERC the Court ruled that when a state challenges a liquefied natural gas (“LNG”) export project, this should target the Department of Energy, not the Federal Energy Regulatory Commission.
Murray Energy Corporation V. Mccarthy, Sarah M. Danno
Murray Energy Corporation V. Mccarthy, Sarah M. Danno
Public Land & Resources Law Review
Holding that the widespread effects of environmental regulation on the coal industry constituted sufficient importance, the Northern District of West Virginia ordered the Environmental Protection Agency to conduct analysis on employment loss and plant reduction resulting from regulatory effects. In admonishing the EPA’s inaction, the court ruled that the Agency had a non-discretionary duty to evaluate employment and plant reduction. Furthermore, the court held that the EPA’s attempt to put forth general reports in place of required evaluations was an invalid attempt to circumvent its statutory duty.
Protect Our Communities Foundation V. Jewell, Benjamin W. Almy
Protect Our Communities Foundation V. Jewell, Benjamin W. Almy
Public Land & Resources Law Review
In Protect Our Communities Foundation v. Jewell, the Ninth Circuit upheld a right-of-way grant issued by the BLM for the development of the Tule Wind energy facility in the McCain Valley in southern California. In its decision to uphold the district court’s summary judgment ruling in favor of the Defendants, the Ninth Circuit reaffirmed National Environmental Policy Act (“NEPA”) standards of compliance for a satisfactory Environmental Impact Statement (“EIS”). The specific challenges raised by the Plaintiffs and addressed by the court were to the Statement of Purpose and Need, the Project Alternatives, the Mitigation Measures, and the “Hard Look” …
Federal Energy Regulatory Commission V. Electric Power Supply Association, Keatan J. Williams
Federal Energy Regulatory Commission V. Electric Power Supply Association, Keatan J. Williams
Public Land & Resources Law Review
In a 6-2 opinion delivered by Justice Kagan, the United States Supreme Court upheld FERC Order No. 745, which regulates the prices that wholesale market operators pay for demand response bids. At issue in the case was whether this regulation exceeded FERC’s wholesale regulation authority under the Federal Power Act, thereby impinging on retail markets under state regulation, and whether the pricing regulations within the rule were chosen in an arbitrary and capricious manner. The Court held Order No. 745 withstood both challenges.
Pit River Tribe V. Bureau Of Land Management, 793 F.3d 1147 (9th Cir. 2015), Kathryn S. Ore
Pit River Tribe V. Bureau Of Land Management, 793 F.3d 1147 (9th Cir. 2015), Kathryn S. Ore
Public Land & Resources Law Review
In Pit River Tribe v. Bureau of Land Management, the United States Court of Appeals for the Ninth Circuit explained the correct application of the zone of interests test and further solidified the importance of proper NEPA and NHPA analysis in geothermal leasing. The court reaffirmed that the BLM and the Forest Service must conduct additional cultural and environmental analysis when granting lease extensions under the Geothermal Steam Act. Furthermore, it rejected the BLM’s decision to grant forty-year lease continuations to unproven geothermal leases by treating them as a unit rather than individually.
Sierra Club V. United States Army Corps Of Engineers, 803 F.3d 31 (D.C. Cir. 2015), Ariel E. Overstreet-Adkins
Sierra Club V. United States Army Corps Of Engineers, 803 F.3d 31 (D.C. Cir. 2015), Ariel E. Overstreet-Adkins
Public Land & Resources Law Review
Despite the majority’s “needlessly circuitous” route, as described by concurring Judge Brown, Sierra Club v. U.S. Army Corps of Engineers stands as a limit of the application of NEPA to a private pipeline constructed largely on private land. While the main issue identified by the District of Columbia Circuit Court was the scope of environmental review required under NEPA, the court also addressed issues dealing with the ESA and the CWA relating to the construction and operation of a pipeline in the Midwest. The court held that under these circumstances, NEPA review was mandated only for those small stretches where …
Wildearth Guardians V. United States Office Of Surface Mining, Reclamation And Enforcement, Erick A. Valencia
Wildearth Guardians V. United States Office Of Surface Mining, Reclamation And Enforcement, Erick A. Valencia
Public Land & Resources Law Review
The Colorado District Court in WildEarth Guardians v. United States Office of Surface Mining, Reclamation and Enforcement ordered the United States Office of Surface Mining to reevaluate the environmental impact of an approved mining modification plan for the Colowyo Mine after the Office failed to involve the public in the approval process and did not take a “hard look” at the modification’s effects on the environment as required by NEPA. Even though the Office of Surface Mining also approved the Trapper Mine’s modification plan without fulfilling NEPA’s requirements, WildEarth Guardians was left without a remedy regarding that mine because the …
High Country Conservation Advocates V. United States Forest Service, 52 F. Supp. 3d 1174 (D. Colo. 2014), Kathryn S. Ore
High Country Conservation Advocates V. United States Forest Service, 52 F. Supp. 3d 1174 (D. Colo. 2014), Kathryn S. Ore
Public Land & Resources Law Review
High Country Conservation Advocates v. United States Forest Service concerns the United States Forest Service’s and the Bureau of Land Management’s authorizations of on-the-ground mining exploration activities in the Sunset Roadless Area of western Colorado. The United States District Court for the District of Colorado’s holding has far-reaching consequences for federal agencies’ analysis and disclosure of impacts on the climate under the National Environmental Policy Act (“NEPA”). In addition to bolstering the Plaintiffs’ recent successes at establishing legal standing to challenge federal agencies’ disclosures and analyses of impacts on the climate under NEPA, High Country is the first case to …
Town Of Barnstable V. O’Connor, Taylor R. Thompson
Town Of Barnstable V. O’Connor, Taylor R. Thompson
Public Land & Resources Law Review
The United States Circuit Court of the First Circuit’s decision in Town of Barnstable v. O’Connor reignites a hotly debated offshore wind plant proposal. The First Circuit held that the Ex parte Young exception to the Eleventh Amendment applied because the complaint alleged an ongoing violation of federal law and the relief sought was prospective. The court did not discuss the merits of the claim, so the fight against the proposed wind plant powers on.
Shell Gulf Of Mexico, Inc. V. Center For Biological Diversity, Nick Vandenbos
Shell Gulf Of Mexico, Inc. V. Center For Biological Diversity, Nick Vandenbos
Public Land & Resources Law Review
In an attempt to stave off what it saw as impending litigation, Shell Gulf of Mexico, Inc. filed suit under the Declaratory Judgment Act against a range of environmental groups opposed to Shell’s oil exploration in the Beaufort and Chukchi seas of Alaska’s Arctic Coast. Shell requested a declaratory judgment that its oil spill response plans, as approved by the Bureau of Safety and Environmental Enforcement, did not violate the Administrative Procedures Act. Although noting the novelty of Shell’s argument, the United States Court of Appeals for the Ninth Circuit concluded the district court had erred in determining a justiciable …
Wildearth Guardians V. Jewell, 738 F.3d 298 (D.C. Cir. 2013), Ross Keogh
Wildearth Guardians V. Jewell, 738 F.3d 298 (D.C. Cir. 2013), Ross Keogh
Public Land & Resources Law Review
As part of a comprehensive strategy to keep coal “in the ground,” environmental plaintiffs challenged the BLM’s leasing of federally owned coal tracts in the Powder River Basin in 2010 on climate change grounds. WildEarth Guardians was the first suit to reach a federal circuit court, where the District of Columbia Circuit Court affirmed that the BLM’s environmental analysis of the climate change impacts of the leased coal was adequate under NEPA. Notably, in reversing the district court, the circuit court found that the plaintiffs had procedural standing.